Tuesday, October 7, 2008

More than 100 people gathered on the steps of the Old Capitol Monday tocall for a moratorium on executions in Florida and a review of itscriminal justice system, which, they said, leads the nation in condemningprisoners who are later exonerated.

Reserving particular scorn for Broward County, the speakers argued thatthe death penalty is applied in a discriminatory and arbitrary mannernationally, but that it's worse than that in Florida: innocent people aregoing to death row.

Last year the Republican governor of Illinois halted executions because13 people had been released from death row there since 1973 -- 2nd mostin the nation. Florida has had 20 exonerations.

Many speakers invoked the case of the 20th: Frank Lee Smith, the FortLauderdale man who died of cancer last year after spending 14 years ondeath row and was posthumously cleared by DNA in December of the rape andmurder that sent him there.

The rally was organized by Jeff Walsh, an investigator who tried to clearSmith.

Attorney Barry Scheck of the Innocence Project, which says it has clearedat least 81 convicts -- including 10 on death row -- through DNA tests,said the Smith case highlights flaws in the legal system: convictionsbased on dubious confessions and unreliable eyewitness testimony,including cases where there is no biological evidence that can be tested.

"The Frank Lee Smith case is like turning up a rock and you see all kindsof things underneath it," Scheck said. "The state of Florida is no betterthan the state of Illinois."

A spokeswoman for Florida Gov. Jeb Bush, Katie Baur, said the governorcontinues to support the capital punishment system in general.

"The governor has repeatedly stated he will not sign a death warrant ifthere is any question of guilt that can be proven or disproven by a DNAtest," Baur said. "Also, why would the governor declare a moratorium onjustice when there are clearly cases in which individuals have confessedto their crimes and evidence proves their guilt? This request defies allcommon sense."

Florida has executed 51 prisoners since resuming capital punishment in1979, 8 of them since Bush took office.

Scheck reiterated his call for a federal review of all cases involvingthe Broward Sheriff's Office detective on the Smith case, Richard Scheff.

Bush has appointed a special prosecutor to investigate if Scheff lied onthe stand about whether he showed a picture of Eddie Lee Mosley -- aserial murder-rapist who lived in the neighborhood -- to the maineyewitness in the case, Chiquita Lowe.

Lowe recanted her testimony against Smith in 1989 after Walsh tracked herdown and showed her a picture of Mosley. Scheff's statements, whichcontradicted testimony he gave at Smith's original trial, discreditedLowe, and Smith stayed on death row.

"I think the federal prosecutors ought to take a very hard look atBroward County, and not just because of Frank Lee Smith, although that'sa very good example," Scheck said.

He also invoked other cases, including Jerry Frank Townsend, a retardedcarnival worker who confessed to Scheff that he raped and murdered13-year-old Sonja Yvette Marion -- a crime also later DNA linked toMosley; and Peter Dallas who was charged with 1st-degree murder and spentnearly 2 years in jail before being cleared.

Scheff's casework has also recently been questioned in the case of TimBrown, who is serving a life sentence for the murder of a BSO deputy in1990 when Brown was 14.

Broward Sheriff's Office spokeswoman Cheryl Stopnik accused Scheck ofmaking his case through the media, noting that no official complaintshave been filed and that the agency is just the first in a series oflevels of checks and balances in the criminal justice system.

"We've had no complaints regarding our homicide unit," Stopnik said. "Weare cooperating with the special prosecutor that Mr. [Michael] Satz,[Broward state attorney,] asked the governor to appoint to look into theone case regarding Frank Lee Smith."

Ron Ishoy, a spokesman for the State Attorney's Office, also downplayedthe attack on Broward criminal justice system.

"There is no cause for any hysteria that the criminal justice system inthis county is not functioning properly," Ishoy said. "The facts in eachindividual case don't support that hysteria that Mr. Scheck is trying togenerate."

The rally was held on the day before the opening of the 2001 session, atwhich several capital punishment bills are pending:

--SJR 124 would change the state constitution's prohibition on "cruel orunusual punishment'' to ``cruel and unusual punishment" -- which underfederal caselaw would lower the age at which someone could be executed to 16

--SB 366 by Sen. Alex Villalobos, R-Miami, and HB 147 by Rep. Randy Ball,R-Titusville, would allow prisoners to have their DNA tested if there isbiological evidence

--SB 292, by Sen. Debbie Wasserman Shultz, D-Weston, would pay $3.5million to the family of Frank Lee Smith

Following trail of injustice

Broward County's Frank Lee Smith is dead, but the issues raised by his conviction -- and his 14-year confinement for a capital crime DNA evidence confirms he did not commit -- are very much alive. Gov. Jeb Bush had no choice but to appoint a special prosecutor to investigate the case, given the serious charge of perjury leveled against sheriff's detective Richard Scheff, whose morphing testimony was key in sending Smith to death row and keeping him there until he died of natural causes. Only time will tell if the special investigation becomes an exercise in getting at the truth -- or in whitewashing.

Bush quietly put State Attorney Bruce H. Colton on the case in late January, following public calls to do so. Colton's job is to determine the validity of allegations, made by Smith's family and others, that Scheff concocted a "phantom" photo line-up to discredit a key eye witness intent on recanting -- and to keep an innocent man he begrudged on death row.

Though the probe's initial focus is on one detective in one case, Colton has a duty to follow investigative trails where they lead. Were Scheff's superiors -- or the prosecutors who repeatedly put him on the stand -- complicit in any act of perjury? The fact that several of those prosecutors have since become judges should not deter Colton from asking, or pushing until he gets answers. If Scheff lied in Smith's case, did he railroad other defendants, too? According to news reports, Scheff was involved in at least two other cases in which innocent suspects were wrongly charged with murder.

Though Scheff retains a presumption of innocence, the allegations against him go to the very core of our criminal justice system. Sadly, accusations of law enforcement corruption and overreach have become all too common. In Hillsborough County, two detectives are being investigated for possible perjury in connection with the Aisenberg wiretaps, while in Jacksonville, Bush last week ordered a probe into allegations that a detective coerced a confession from a teenager who was later acquitted.

It's bad enough when the system sends an innocent man to prison by accident. It's intolerable if it does so by design.

A Broward County sheriff's captain who helped send an innocent man todeath row in 1986 has been accused of lying and making up evidence tokeep him there.

Capt. Richard Scheff, head of the department's internal affairs unit, ledthe investigation that convicted Frank Lee Smith of murdering and rapingan 8-year-old girl. Smith, 52, died of cancer in prison last year, and 11months later, genetic testing cleared him after noted defense attorneyBarry Scheck took up his case.

Scheck called for a perjury investigation of Scheff, and in JanuaryBroward State Attorney Michael Satz asked the governor to appoint aspecial prosecutor. Satz wanted to avoid a conflict of interest becausehis office prosecuted Smith to begin with. Gov. Jeb Bush appointed BruceH. Colton, the state attorney for Martin, St. Lucie, Okeechobee andIndian River counties, to handle the inquiry.

A random Sun-Sentinel search on Wednesday of cases Scheff handled orsupervised since 1987 found at least 4 other men who had been wronglyarrested and charged with murder. The arrests stemmed from 2 killings andall the men were cleared after spending as much as 2 years behind bars.

Scheff, 51, would not talk about the cases or accusations.

"I don't know anything about those other cases. We'll have to get moreinformation on that," sheriff's spokesman Jim Leljedal said on Wednesday."I know Scheff was the supervisor on at least three of those cases, butthat's about it."

Scheff has risen swiftly in the sheriff's department and on Wednesday wasappointed chief of the sheriff's Tamarac division. Tamarac City ManagerJeff Miller rescinded the offer after learning about the investigation,and Scheff remains in charge of internal affairs.

He joined the department in 1980 as a deputy and has served as head ofthe detective unit and internal affairs. Scheff was once in charge ofDistrict One, covering the southern part of the county, and his personnelfile is brimming with commendations.

"Scheff's a good detective and we're confident that when we get all theevidence, Scheff will come out fine," Leljedal said.

In 1985, Scheff was named officer of the month for arresting Smith andcharging him with the murder of Shandra Whitehead, 8. At Smith's 1986trial, Scheff testified that a witness, Chiquita Lowe, identified thethen 38-year-old Smith as the girl's killer.

Witness recants

Lowe soon recanted and identified another suspect, Eddie Lee Mosley, asthe culprit, prompting the state Supreme Court to order a new hearing onthe evidence. At the 1991 hearing in Broward, Scheff testified that Lowenever picked Mosley from a photo lineup, but she contradicted him andsaid she was never shown any photos.

Scheff couldn't produce the photo lineup, but 7 years later, at anotherSmith hearing, he said it surfaced. That hearing was ordered because thestate Supreme Court ruled that the state attorney's office and the judgemet illegally during the trial without informing Smith's lawyers.

Smith's bid for a new trial was again denied and he died in prison lastyear. On Dec. 22, DNA testing proved his innocence.

Scheck and his nonprofit Innocence Project entered the case after Smith'sdeath and persuaded the state attorney's office to allow testing of theDNA. The Innocence Project has used genetic evidence to help free dozensof people improperly sentenced to death around the country.

New prime suspect

Mosley, in a psychiatric hospital for another killing, is now the primesuspect in Shandra's murder, police said.

Smith had a long history of violence, and was twice convicted of murder.When he was 13, he stabbed a 14-year-old boy to death and spent 11 monthsin a juvenile center. A few years later, he shot and killed a man duringa robbery and spent 15 years in prison before being released in 1981.

Smith's attorney at the Shandra Whitehead trial, Andrew Washor, said hehad no doubts that Scheff wasn't being truthful, especially when he saidSmith confessed.

"The thing I didn't particularly believe at the time was that Smith madea confession, Washor said. "Scheff wasn't being that candid when I askedhim if Lowe and others had been shown a picture of Mosley. Heemphatically said, 'No.' A couple of years later, Scheff said he showedher a picture of Mosley.

"All the evidence the state had was a witness they browbeat and asupposed confession. That was their evidence," Washor said. Those sameallegations were made in 4 other murder charges that Scheff had a hand in.

In 1990, Scheff and Detectives Eli Thomasevich and James Carr arrestedJohn "Woody" Wood, an admitted alcoholic who said he suffered flashbacksfrom his service in Vietnam. The detectives said Wood confessed tokilling Christopher Morris, and Scheff said he had given detectivesinformation only the killer would have known.

But Wood wasn't the killer. Morris' parents were eventually charged andconvicted.

The murder charges were dropped and Wood was freed.

Also in 1990, Scheff was supervising two detectives who wrongly arrestedthree men and charged them with killing Joseph Viscido Jr. The men, PeterRoussonicolos and Peter Dallas of Pompano Beach, and Stephen Rosati ofRhode Island each were in jail for more than 18 months before being freed.

Dallas even confessed to the murder and pleaded guilty to 2nd-degreemurder after cutting a deal. But he later recanted, accusing detectivesSteve Wiley and Dominick Gucciardo of repeatedly banging him against awall at the sheriff's office and threatening him with the death penalty.

Real killers arrested

While the 3 men sat in jail, the Florida Department of Law Enforcement in1992 arrested the real killers, James Traina and Kerry J. Carbonell. TheFDLE and attorney Cynthia Imperato of the Statewide Prosecutor's Officehad overw0helming evidence, including murder weapons and confessions,court records show.

But Scheff continued defending the case and his detectives, while thestate attorney refused to drop charges against the innocent men. Finally,FDLE asked the governor to name a special prosecutor, John Aguero of PolkCounty. He won convictions against Traina and Carbonell and freed theother men.

Rosati, Dallas and Roussonicolos have pending civil lawsuits filedagainst the county and detectives Wiley and Gucciardo.

As a detective, Scheff has had an extraordinary run to the top, winningcommendations and praise along the way. His personnel file includesglowing letters from family members of murder victims and many assistantstate attorneys, all saying Scheff was a zealot about making arrests.Scheff and his detectives "comprise the finest homicide unit in the stateof Florida today," Broward Sheriff's Captain Paul Lauria wrote in June1995. They have "an unending desire to solve each and every case."

Smith, 52, died of cancer Jan. 30 at the North Florida Reception Center hospital. He had been sent to death row 14 years earlier for Whitehead's murder.

Former Gov. Bob Martinez signed a death warrant for Smith in 1989 and he was scheduled for execution in January 1990 but he won a stay.

In 1985, someone broke into Shandra Whitehead's bedroom as she slept and raped, beat and strangled her. Her mother was returning home from work when she saw a man at the living room window.

She testified it was Smith. His insanity defense failed and he was condemned after a unanimous jury recommendation for death. The state Supreme Court upheld the conviction and sentence after the first direct appeal but in January 1998 ordered a trial judge to hold an evidentiary hearing based on Smith's claim of new evidence. It didn't have anything to do with DNA.

At Smith's trial, three witnesses testified against him, including the mother of the little girl and a woman who said she saw him in front of the victim's house just before the murder.

But Chiquita Lowe later changed her story, saying the man she saw was someone else. At the appeal hearing in the fall of 1998, the trial judge wasn't persuaded, McCann said Thursday. Meanwhile, lawyers on both sides of the case were fighting over DNA.

McCann said Smith's lawyers wanted to have their client's DNA tested but wanted to keep the results to themselves. She said she refused to agree to that condition and tried to get them to agree to a DNA test where the results would be available to both sides.

``My whole point of doing DNA testing was that I thought he was guilty,'' McCann said.

A short time after Smith died, an investigator in McCann's office obtained a vial of his blood. A few months later, inmid-July, an agreement was hammered out.

Then it took a few weeks to get the paperwork signed and to collect the evidence -- semen left in the little girl's vagina -- from the Broward County Sheriff's office.

``It was just a matter that they got behind and Frank Lee Smith was dead,'' McCann said.

The samples were sent to the FBI a month ago. McCann learned of the results Monday.

At least nine former death row inmates across the country have been exonerated because of DNA testing, according to the Innocence Project, a New York-based group that has provided legal assistance to dozens of wrongly convicted inmates.

Earlier this year, Illinois Gov. George Ryan, a Republican, declared a moratorium on the death penalty to examine improvements because 13 death row inmates have had their convictions overturned since 1977.

DNA Testing and the Death Penalty

In the U.S., as of May 2001, 88 persons, in 22 states, including 10 death row inmates, have been exonerated by use of DNA tests. The increasing use of DNA testing to help confirm the innocence or guilt in capital cases is one among many reforms that will help ensure that innocent people are not sentenced to death.

Desoxyribonucleic acid (DNA) is an essential molecule that is part of every cell in our body. Essential, because it enables an embryonic cell to become and exist as a functioning being.

DNA also has another important property: its uniqueness. While human and animal DNA's are remarkably alike, modern science can reliably and with great accuracy distinguish between the DNA's of individuals. Unique to an individual (except in the case of identical twins and bone marrow transplant recipients), unchanging throughout one's life, and found in all one's cells, DNA is a reliable identifier. DNA testing on biological samples such as skin, saliva, semen, blood or hair can help convict or exonerate with great accuracy. But only if the biological evidence is properly collected, preserved and kept from contamination. And only if the analysis is done correctly. Under those conditions DNA testing is the modern improved version of fingerprinting.

It's important to know that DNA testing is a two-edged sword. No national data are available on the number of DNA test results that affirmed guilt, but of the cases subjected to DNA testing by the Innocence Project (a program of the Cardozo School of Law in New York) about half confirmed guilt.

Many instances of the use of DNA tests to rectify the horrible "mistakes" of our criminal justice system can be cited. In the sidebar are just two recent examples.

Although invaluable, DNA testing cannot always be put to use. In many cases, because of the nature of the crime, a DNA test cannot identify the murderer. In other cases DNA samples were not collected at the crime scene and preserved in a state suitable for testing today, or DNA testing of sufficient sophistication either was not available or not performed. And most significant, in some cases relevant samples may no longer be at hand because the evidence was destroyed.

For many inmates the most important obstacle to DNA testing is the fact that in many jurisdictions officials refuse to enable inmates to have evidence tested using modern DNA testing methods, arguing that this would reopen too many old cases. Perhaps, though unstated, they fear that wrongful convictions would highlight the many "mistakes" of the criminal justice system and provide more fuel for the increasing calls for a pause in executions until we can be sure it is properly and fairly applied, and without the risk of executing the innocent.

A Gallup Poll, conducted in March 2000 found that 92% of Americans say those convicted before the technology was available should be given the opportunity to submit to DNA tests now - on the chance those tests might show their innocence. Thus this has become an important political issue.

This spring, legislatures of 28 states discussed DNA post-conviction testing proposals. Fourteen of the 38 death penalty states (Arizona, California, Delaware, Florida, Idaho, Illinois, Maryland, New York, Oklahoma, Tennessee, Texas, Utah, Virginia and Washington) now give inmates, albeit to different extents, the right to DNA testing.

At the federal level, Sen. Patrick Leahy (D-VT) and Rep. William Delahunt (D-MA) introduced the "Innocence Protection Act" (S. 486 and H.R. 912). It would allow prisoners on death row to request DNA testing on evidence from their case that is still in government possession and that could help establish their innocence. With about 200 co-sponsors in both houses these bills have a good chance of enactment.

Frank Lee Smith, Florida

Convicted 1985;

cleared (after death) in 2000

Mr. Smith was convicted of the rape and murder of a child. After the trial and sentencing the chief witness recanted her testimony. But Smith nevertheless was scheduled for execution. He died of cancer in January 2000, while on death row before the completion of the DNA test results that proved his innocence ten months later.

Since December when it was announced that DNA evidence had posthumously cleared a Broward County man who had died of cancer on Death Row, the Broward Sheriff's Office's homicide unit has come under intense scrutiny.

The spotlight has focused on Richard Scheff, a veteran homicide investigator and former head of the unit who is accused of lying on the witness stand about the case he built against Frank Lee Smith.

Meanwhile, several defense attorneys have questioned whether, in light of the Smith case, Scheff and the homicide unit he led might have built cases based on coerced confessions and shaky eyewitness testimony.

Scheff, who began as a patrol officer and rose to become the leader of BSO's internal affairs unit, was shifted to an administrative job recently while a special prosecutor investigates the allegation of perjury.

Sheriff's officials contend that, apart from the Smith case, no one has presented them with any formal accusations against Scheff or the homicide squad.

``If someone has a concern or allegations about the way we do business, they should bring it to our attention. The sheriff wants to know about that,'' said Cheryl Stopnick, BSO spokeswoman.Scheff declined to be interviewed.

In the wake of the Frank Lee Smith controversy, Sheriff Ken Jenne has called for DNA tests to be performed on seven inmates, six of them on Death Row. Of the seven inmates, Scheff was the detective assigned to two of the cases: Lancelot Armstrong and Michael Rivera, and the supervisor on two others: Dwayne Parker and Lewis Lawrence. Scheff headed the unit when one of the inmates, Robert Consalvo, was charged with murder.

The six men are the only current Death Row inmates that BSO investigated.

The newest challenge to a BSO murder conviction comes in the case of Michael Rivera, sentenced to death in 1987 for the murder of Staci Jazvac. His attorneys claim the conviction rested on statements Scheff testified to that were taken out of context and implied Rivera's guilt in the murder, and the testimony of a jailhouse snitch.

``There was nothing to tie [Rivera] to it except his supposed statement,'' said Marty McClain, a Death Row attorney representing Rivera. ``It all depended on Scheff and his partner's testimony, on whether you believe them or not. The only physical evidence was a hair follicle that a BSO forensics examiner concluded was consistent with Staci's known hair.''

McClain says the Rivera case shows a pattern typical of several controversial BSO murder convictions: It rests largely on a confession obtained by Scheff's homicide squad

.The Capital Collateral Regional Counsel, a group of public defenders located in Tampa, Tallahassee and Fort Lauderdale representing Death Row inmates, filed two motions in Broward County Circuit Court on Wednesday asking the state to reveal all evidence it has on Rivera.

The group, represented by McClain, also seeks any information discovered by the state that would impeach Scheff's testimony in Rivera's trial and DNA testing on the hair follicle.

HAIR FOLLICLE

DNA testing would prove conclusively if the hair follicle found in a van that Rivera was known to use really came from Jazvac, McClain said. At the center of the legal skirmish is Scheff, a man who earned a reputation for cracking the tough cases during his two-decade rise in the BSO.Several high-profile cases involving Scheff are now being questioned:

Frank Lee Smith was sent to die in prison for the murder of 8-year-old Shandra Whitehead after an eyewitness in the 1985 murder case testified at two appeal hearings that Scheff had pressured her to identify Smith while never bothering to show her a photo of Eddie Lee Mosley, accused of rape and murder, who roamed the same northwest Fort Lauderdale neighborhood where the young girl was raped and killed

That testimony is now being investigated by a special prosecutor appointed by the governor, at the request of Broward State Attorney Michael Satz.

Smith was exonerated last year after he died of cancer in prison.

Peter Dallas, Stephen Rosati and Peter Roussonicolos were indicted in September 1990 and charged with the murder of Joseph Viscido Jr. of Deerfield Beach. BSO's homicide unit took over the 4-year-old murder case from Deerfield Beach in 1990 and within four months they thought they had their killers. Dallas confessed to the killing and implicated Rosati and Roussonicolos. Scheff and lead detective Steven Wiley interviewed an eyewitness who later said she was harassed by the detectives into identifying Dallas from a photo lineup.

Scheff and Wiley presented the case to the state attorney's office, which led to the indictment of Dallas, Roussonicolos and Rosati. The trio spent almost two years in jail.

But the case dissolved after a former Florida Department of Law Enforcement special agent, Michael Breece, came forward with new evidence implicating two other men in the Viscido murder.

``I can see protecting your case and the credibility of your case is very important, but there comes a time when you have to say, `Hey, something's wrong here and we need to look at it,' '' Breece said. ``But BSO didn't want to do that.'' The Broward County state attorney's office asked for a special prosecutor to investigate the new evidence. Dallas, Rosati and Roussonicolos were freed.

Timothy Brown and Keith King were convicted for the 1990 murder of Deputy Patrick Behan in Pembroke Park. Brown was 14 at the time of the murder; King was 17. Attorneys for Brown maintain their client's confession was coerced. Brown was convicted Oct. 21, 1993, and sentenced to life in prison without the chance of parole. King was sentenced to 15 years and was released in December 1999.

Federal public defenders for Brown have filed a petition in Miami seeking a new trial, alleging Brown's confession was coerced, that he waived his Miranda rights against self-incrimination without understanding them, and that Brown's mother was not allowed to speak with her son during his interrogation. Scheff testified at a subsequent court hearing that Brown's mother, Othalean Brown, did not want to see her son during his interrogation.

Othalean Brown says she asked to see her son, but was told by Scheff that ``he had been moved elsewhere.'' '

Michael Rivera was sentenced to death in May 1987 for the murder of 11-year-old Staci Jazvac. The Rivera case is another where attorneys contend a conviction was obtained with an implied confession and the testimony of a jailhouse snitch.

While awaiting trial for the murder of Jazvac, Rivera was convicted and sentenced to life for the kidnapping and attempted murder of an 11-year-old Coral Springs girl.

The 11-year-old gave a poised demonstration of the attack for the jury, pausing only when asked to identify Rivera as her assailant -- she could not. Rivera is on Death Row pending an appeal.Richard Scheff joined the Broward Sheriff's Office in 1980 at the age of 29. He was the oldest cadet in his class at the South Florida Criminal Justice Department. As a young man, Scheff owned a company that installed alarms in homes and businesses. But he said another career kept calling him.

``When you're a kid, you want to be a police officer, a jet pilot or an Indian chief,'' Scheff told The Herald in a 1998 interview.

``I never quite got over the desire to be a police officer.'' His personnel file is brimming with commendations, including Deputy of the Month for his ``outstanding performance'' in the Frank Lee Smith case and a letter congratulating Scheff and the homicide unit on their exceptional rate of cleared cases.

Scheff was a detective with the homicide unit from 1983 to 1985. He then was promoted to sergeant and supervised the unit from September 1986 to January 1990. Then, promoted again, he headed the unit until 1993. Another promotion put Scheff in charge of the criminal investigation unit, which oversees all major crimes, robbery, homicide, sexual assaults, until 1997.

Sheriff's officials say they don't know enough about Scheff's casework to determine his exact role in each investigation, how ``hands on,'' Scheff was.

``The direct supervisor for the detectives in the homicide unit is the sergeant and he is responsible for the day-to-day operations and the overseeing of the detectives and their cases,'' said Jim Leljedal, BSO spokesman, describing the job Scheff held in general terms.

JUGGLING CASES

``The sergeant is aware of the cases his unit is handling and what each of his detectives is doing in each homicide investigation.''

The homicide unit now comprises eight to nine detectives led by two sergeants. Ten to 15 years ago, when Scheff directly oversaw the unit, the homicide squad typically had six to eight detectives with only one sergeant, Leljedal said. Each detective handles two to three cases at any one time.

Breece concurs that juggling several homicide investigations simultaneously makes it difficult for detectives to devote a great deal of time to any one case, sometimes forcing them to act quickly.``There is no better feeling for a law enforcement officer than to know he did things right and got a good conviction,'' Breece said.``The Peter Dallas case was one of the highlights of my career and one of the lowest, because no one wanted to admit they had made a mistake and ended up making it personal by attacking me and my credibility.''

Sunday, October 5, 2008

In December 2000, after spending fourteen years on Florida's Death Row, Frank Lee Smith was finally cleared of the rape and murder of 8-year-old Shandra Whitehead. Like nearly 100 prisoners before him, Smith's exoneration came as a result of sophisticated DNA testing unavailable when he was first convicted. But for Frank Lee Smith, the good news came too late:

Ten months before he was proven innocent, Smith died of cancer in prison, just steps away from Florida's electric chair.

How did Frank Lee Smith end up on Death Row for a crime he didn't commit? And why was he allowed to die there despite possible evidence of his innocence? In FRONTLINE's "Requiem for Frank Lee Smith," airing on PBS Thursday, April 11, at 9 p.m. EDT on PBS (check local listings), award-winning producer Ofra Bikel explores these and other questions. She was online Friday, April 12.

The transcript follows.

Bikel is known for looking at the U.S. criminal justice system and has a hand in the exoneration of the defendants/convicts she reports on. She was online in January to talk about her film, "An Ordinary Crime," and her 1999 documentary "The Case for Innocence" profiled several men whose claims of innocence seemed to have been confirmed by DNA testing of trial evidence but who remained in jail. They were eventually set free, as were all of the defendants in the Little Rascals Day Care trial, whom she profiled in her "Innocence Lost" trilogy. The series, which included "Innocence Lost" (1991), "Innocence Lost: The Verdict" (1993), and "Innocence Lost: The Plea" (1997), won awards including an Emmy, two duPont-Columbia Silver Batons and a duPont-Columbia Gold Baton.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

Oxford, Miss.: Ms. Bikel,I have just watched your outstanding documentary on Frank Lee Smith. I am outraged at the uncaring and careless attitude of the prosecutors and of Detective Scheff. They had already condemned Smith because of his past and for them to be more worried about how they would look if Smith were innocent than to save someone from one of the most horrible and cruel deaths imaginable makes me literally physically ill. These people are subhuman and the scum of the earth! Thank you for exposing them. It's too bad Smith's aunt can't sue them individually. Florida isn't to blame, the individual prosecutors are. They decided to ignore the DNA issue. As for Ms. Lowe, I can understand she was under a great deal of pressure, but she didn't take into account that a person's life was a stake. At 19, she was old enough to speak up.Ofra Bikel: I agree with what you say about Ms. Lowe -- you can imagine that when the police think that they have one eyewitness, and this girl was 19, scared, and they told her look, we absolutely know he did it. We need you.

Can you imagine the pressure on her? That's exactly what they said to her. And so she did.Even today she's a very soft-spoken, soft-hearted woman. And she was so young.The crazy thing is that even if it were him, whoever she saw, it was a half hour before the murder when she saw him. She never saw him commit the murder, she never saw him go into this house, so it was peculiar how they got him in the first place.

Arlington, Va.: I was absolutely stunned that these judges and the prosecutor completely disregarded Chiquita Lowe's recantation. Even if they thought she might be lying, the evidence in the case overall seemed so flimsy. ID'ing someone based on his shoulders? I realize her testimony was the key to the case, but I can't believe that even if they didn't believe her the second time around that the case itself didn't smell funny to people who were prosecuting.Ofra Bikel: I couldn't agree more. It's shocking. And part of the reason I wanted to do this, because I just couldn't understand how they could do this -- keep him in prison, saying she was lying. Why would she lie?

Washington, D.C.: Did you find Chiquita Lowe credible when you interviewed her? What was your sense of her veracity?

Ofra Bikel: I found her very credible. When she first came to see me, she made a very long trip. She was crying, she was so unhappy, she felt so guilty. She was so horrified, because she was so mistreated by the police. She said "they treated me like a queen" the first time. And the second time "they treated me like garbage." It was horrible.

The strange thing is that of all the people involved, she was the only one who took responsibility. Not the detective, who probably lied, not the prosecutors who didn't use DNA testing because they didn't have to. Nobody feels as bad as she does.

San Diego, Calif.: I found the attitude of the prosecutors you interviewed horrendous, especially with respect to the procedural default issue. Did you interview either of them after DNA exonerated Mr. Smith? If so, how did they feel about all their hard work to execute an innocent man?

Ofra Bikel: It varied. Caroline [McCann], the assistant D.A., said she was shocked. She said it never occurred to her that he might be innocent. And Silvershein still maintains that Chiquita did see Frank Lee Smith even though Frank Lee Smith didn't kill the little girl, that it's possible he was there to steal a television set. So he's not exactly trying to atone for what happened. McCann was more shocked. Why she was shocked, I don't know.

The letter was very odd, because it came to us from the sheriffs office saying that it seems to us that Ms. Bikel was under the wrong impression that if the DNA test had been conducted when Frank Lee Smith was alive he would have been released. But because they found a knife on him 14 years ago when he was arrested, which violated his parole, they might have moved him from death row, but they would not have let him out of prison. I found it the most callous thing I ever heard. My only interpretation is that they don't want the anti-death penalty people to say they executed him. Nobody wants to say that somebody has been executed by mistake. So they say he would have died in prison anyway, even if there had been the DNA test. It was a callous, awful letter.

Washington, D.C.: I support the Innocence Protection Act, federal legislation which would guarantee all offenders (not just those on death row) access to DNA testing, and would also create national standards for defense attorneys who are allowed to defend people facing a possible sentence of death. I know death penalty states around the country have begun to reform their broken capital punishment systems already. What have you found to be the most grievous areas of the death penalty system (areas that federal and state legislation could address) in your filmmaking?

Ofra Bikel: It's incredible that after it was known that Frank Lee Smith was innocent and did not get a DNA test, the law has been changed to the point where no one who pleads guilty can get a DNA test. So today Townsend would be in prison -- didn't matter that he didn't do it. The new "sunshine" law says that from the moment you are convicted, you have two years to file for DNA testing. Barry Scheck says it takes four years to get a DNA test. It's a step back. So Frank Lee Smith couldn't have gotten his DNA test today.

DNA is just one element because it's so scientific and because you can say this person is excluded, it's a sure-fire way to rebut someone's guilt. But think of all the people who didn't have DNA testing. Whenever a witness recants, they can say she's lying. The fight for DNA testing is the only thing we have so far that's scientific, that is sure. And they're fighting that. If DNA doesn't do it, nothing will. The whole thing is egregious.

Burke, Va.: I am an undergraduate student at George Mason University who, with nine other students, undertook an exhaustive study of three capital cases gone awry in the fall 2001 semester. One of these cases was the Frank Lee Smith Case. I was curious to hear your opinions about the virtual conspiracy on the parts of Richard Scheff, Paul Zacks, and Judge Richard Tyson to keep Smith in prison. As well, your thoughts on the fact that Scheff is still a detective in good standing despite his perjured testimony?

Ofra Bikel: When the judge denied the hearing, the prosecution wrote the draft. It took eight years to vacate the order. So another judge inherited it. It's cheating. It's called ex parte communication.

On Scheff, I think very bad thoughts. It shows me that the thin blue line is doing very well in Florida. They're not going to convict one of their own.

It was a whitewash. He got a slap on the wrist. And no reasonable person should take comfort in his staying on the job. And his colleagues have been involved in other questionable cases. There are many.

Phoenix, Ariz.: How can we contact his relative about donating a marble headstone for Mr. Lee?

Ofra Bikel: Chiquita Lowe's address: 3380 NW 30th St. #5, Lauderdale Lakes, FL 33309Gardena, Calif.: I would like to know if this story will air on the major network channels like ABC, NBC and CBS? I think once this story gets out to these stations then the whole world will see how ugly the death penalty can be.

Did Chiquita ever apologize to Mr. Smith's family member Bertha? If not, then she should do so; and also Bertha should sue the state of Florida for wrongful imprisonment and wrongful death of her cousin.Did Mr. Smith get any kind of cancer treatment while in prison?

Ofra Bikel: The major stations are not interested.

She did apologize. Bertha did sue.He got very very very bad treatment. Tied to a guerney, he didn't have enough water, didn't have enough medication, he was alone, he was surrounded by people who hated him, screaming in agony. Still hoping that the DNA would set him free.

Bethesda, Md.: What was your impression of the detective who suddenly "remembered" a third photo lineup including a picture of Eddie Lee Mosley? And did you find the comments about the age of the photos of Eddie Lee Mosley -- that the one Chiquita Lowe recognized was taken five years before the crime and the one taken the year before didn't match -- to be convincing?

Ofra Bikel: Not really. To me, when I see pictures that look as though they're a twin of another person, I don't ask when it was taken. The eye in the sketch drooped, the eye in the photo drooped. Kevin Allen, the policeman who knew him very very well, said it was him. He said nobody ever showed it to him. And in the end, it was Mosley. I found it nonsensical; the guy looked so much like the composite. I stayed with the prosecutors a total of three hours and I got a letter of total indignation. I said please answer my questions -- don't keep going around over and over and over.

I would have answered this accusation if the DNA didn't come out the way it did. But it looked like him, it was him. I want to know why they fought so hard to say it wasn't Mosley. They couldn't convict him because it was always sending him to mental institutions. It was easier to convict Frank Lee Smith than it was to convict Mosley.

Washington, D.C.: The person I found most touching was Shandra's brother. To hear about how this terrible event still haunts his life was just terrible. That's no way to live. Has anyone ever offered counseling to her family? To any of the people involved? His wife seemed like a great person, but that alone's just not enough if he's still waking up in the night thinking of this.Ofra Bikel: I agree. His wife is wonderful, and I don't know what he would have done without her. She's just terrific.

He said he was on the sofa watching television with his sister a half hour before. How did he get into bed? He doesn't know how he got into bed.

College Park, Md.: The only surprising thing in this case is that people are surprised. The legal system is geared to convict somebody, anybody, for crimes that shock the public. It gets votes for officials and judges (in states that elect them) and makes celebrities out of the participants in the case. Suspects are drawn from a group that can be easily convicted (poor, minority, less educated, etc.) and the show begins.

What fundamental changes can we make to prevent this version of showtime justice?

Ofra Bikel: You're right. More people need to ask questions. More people need to insist for the vulnerable people who live in America that when a crime is committed that they're not automatically on the list of suspects.

The police actually lie an awful lot. And they think they know who is guilty, and they will manufacture any evidence. They tell you they will never indict an innocent person. It's like the end justifies the means -- we know he's guilty, and we'll get him however we can.It starts first with the public fear of crime. Who ever talks about rehabilitation? It's punishment -- we'll punish them, they deserve. In one of the reviews [of the program], it said it was almost like a perverse justice -- he wasn't an innocent man. He'd committed a murder before, and he wasn't innocent. How do you stop thinking like that? You're polluting the system.

Hampton Roads, Va.: On forensics -- if the police had a semen or other fluid sample -- did they not even consider a blood type match, which was available then?

Ofra Bikel: There was semen, there wasn't blood type. They didn't even give him DNA when there was blood. They weren't into the fine points; they didn't think they needed it.Capitol Hill, Washington, D.C.: I did not see the program. Did the prosecutors or the detectives ever give you a reason why they did not want to do a DNA analysis? I think it should be routine in any murder case and mandatory in capital punishment cases.

Ofra Bikel: Because they realized they won the case without it, so why use it? The assistant DA said when Chiquita Lowe wasn't impressive (the second time), they thought why do they need it?Arlington, Va.: I'm interested in knowing your suggestions for forcing the media to pay more attention to prison/death penalty issues.

Ofra Bikel: The thing is that the people watch prefer to watch "The West Wing" and "Sex and the City," what can I say? If they really wanted to watch more, believe me, there would be more. It's sad; why should they? They don't want to watch. Television does what they think the audience wants. There's always this argument: are we supposed to give the audience what they want, or should we educate them? When there's a show on pornography on "Frontline," there are many more people watching.

Re: The tombstone question: You have no right to publish Mr. Smith's accuser's address when you were asked for his relative's address.

Ofra Bikel: It's Chiquita Lowe who asked sister's permission to put a headstone. She's looking to help pay for the headstone.

Washington, D.C.: My name's David Von Drehle. I wrote a book on the death penalty in Florida called "Among the Lowest of the Dead." It's worth pointing out that this case is not at all unusual. Your excellent work has been done over and over again, beginning with Gene Miller nearly forty years ago. And always the pattern of obstruction, name-calling and denial are the same.

Ofra Bikel: All I can do is point to the cases that are here now. I'm sure your book is very interesting. And it's not new; the public should know that.

Harrisburg, Pa.: There are sometimes difficulties with DNA evidence itself. Some laboratories are not as professional as others. There have been laboratories discovered to have 50 percent error rates, which makes one wonder if it would be just as accurate as flipping a coin. Thus, a scary proposition emerges: many innocent people are being convicted on inaccurate evidence, and many guilty people are being let free.

Some of us from where this question is being sent have been working on legislation to allow the state government to inspect and certify laboratories. This does not mean that an attorney or the police could not use an uncertified or out of state laboratory. Yet, it may be helpful for courts to know whether evidence has been analyzed by a laboratory that has been inspected and certified. Do you have any comments or suggestions regarding such legislation?

Ofra Bikel: I completely agree. If the prosecution has to agree to what lab the evidence is being sent to, then the lab should be supervised. Of course.

Washington, D.C.: Have anyone spoken to the real culprit in this-Mosley? Also, It was appalling in the letter sent to "Frontline" that the sheriff department would try to save face by stating that Mr. smith had a knife on him, therefore he would have remain in prison because it was in violation of his parole. Some nerve! after serving all that time for a crime he did not commit! I have had a long mistrust of prosecutors this case makes it even deeper. They are hell bent on convictions whether by hook or crook. All, I can say for the prosecutor and the detective (or should I say the racist low-down dirty dog) there is a higher power, we all have to someday, somehow give an account for our willful actions. As for Mr. Joel Sams of Kentucky, its racist rednecks like you that give America a bad name. I hope to God you're not in law enforcement or any other job that requires objectivity. Well done Ms. Bikel and Frontline. God bless.

Ofra Bikel: He's nutty. And he's wily. They've talked to him 100 times. He says he hasn't done anything. If you can get away with 60 rapes and a dozen murders, you're a very smart man.And that letter was unbelievably galling. After all that, after the guy dies, they go to his little flag and ask forgiveness, they want me to tell the audience that the guy would have died in prison anyway. Completely galling.

Smith, who had spent 14 years on death row for a murder he said he did not commit, kept mumbling about his appeal, wondering whether prosecutors would grant his longstanding request for DNA testing to prove his innocence.

They did, but it came too late for him.

On Thursday, 10 1/2 months after cancer killed him at North Florida Reception Center, a prosecutor said the FBI had cleared Smith of the 1985 rape and murder of 8-year-old Shandra Whitehead.

It is thought to be the first case in which posthumous DNA testing proved a man's innocence."They told me, "The DNA excludes him from being there,' " said Broward Assistant State Attorney Carolyn McCann. "He didn't do it," she quoted the FBI.

Smith's lawyers are outraged.

A spokeswoman for Gov. Jeb Bush said Thursday that the governor wants to offer DNA testing to other condemned inmates.

"If the FBI data is accurate, this man should not have been on death row," said spokeswoman Katie Baur. "The governor's office has been working for several months to provide DNA testing for all death row inmates in which a DNA test could prove their innocence."

On Thursday, Smith's lawyers accused prosecutors of stubbornly ignoring evidence of his innocence for years and then blocking DNA testing while Smith was alive.

"We knew he was innocent in December of 1989," said Martin McClain, Smith's former lawyer. "We told the courts, and we told them who was the real killer, but no one cared, and they kept Frank Lee Smith on death row for another 10 years until he died."

In the Smith case, the DNA evidence is "just a snapshot of how unreliable the system is," McClain said. "If you were grading the system, this case shows it flunked."

Smith, convicted of two earlier homicides, had been on parole when police accused him of sneaking into Shandra's home and raping and fatally beating her in her bed. No physical evidence linked him to the crime, but a jury convicted him in 1986 based largely on an eyewitness. A judge sent him to death row.

Gov. Bob Martinez signed a death warrant on Oct. 16, 1989, but less than a month before Smith's scheduled execution, the eyewitness, Chiquita Lowe, recanted. She testified she wrongly identified Smith after police pressured her, telling her Smith was dangerous.

A week before he was to die, the Florida Supreme Court stayed the execution.

But then a judge in Broward turned down his request for a new trial after prosecutors depicted Lowe as a liar.

In fact, Lowe never wavered from her testimony that she saw someone else lurking outside the victim's house that night: Eddie Lee Mosely, an insane killer who was the prime suspect in a number of other rapes and killings in the same neighborhood.

In 1998, Smith's attorneys began pressing for DNA testing. But the Broward State Attorney's Office said that under longstanding court rules it was too late for Smith to get his conviction overturned -- even if the semen found in the victim belonged to someone else.

At one hearing, prosecutor McCann accused Smith's lawyers of "playing games" to delay justice."This is not a game," countered Smith's attorney, Bret B. Strand. "If Smith's DNA does not match the evidence, he is innocent. The interests of justice in preventing the execution of an innocent man outweigh the state's interest in a procedural rule."

Former O.J. Simpson lawyer Barry Scheck, who served on Smith's legal team, argued that DNA testing might not only vindicate Smith but also solve a series of homicides and rapes in the area.McCann now insists she wasn't opposed to DNA testing, but she did object to a defense team condition to keep the results secret.

Strand said that after Smith, 52, came down with cancer, prison officials were slow to respond. "He lost 30 or 40 pounds" the lawyer said, adding that Smith was left writhing in pain in solitary confinement at Florida State Prison.

Eventually, he was transferred to the prison hospital, where investigator Jeff Walsh visited a week before Smith died. "He was moaning, begging for water," Walsh said in an interview shortly after Smith's death on Jan. 30. "He was lying in his own excrement."

He asked Walsh how his appeal for the DNA testing was going.

After his death, attorney Hilliard Moldof sought an order to keep the state from destroying the DNA evidence so that it could be compared to the dead man's DNA. Prosecutors originally opposed the testing, but an agreement was finally worked out in July.

Prosecutor McCann said she still is waiting for the FBI's written report. When it arrives, she said she probably will move to vacate Frank Lee Smith's conviction.

Shandra's mother has been informed, and Mosely is now a suspect in the killing, McCann said. She added she is very upset about Smith's conviction.

"No prosecutor wants this to happen," McCann said. "Unfortunately, we're in an imperfect system where the guilty go free, and sometimes innocent people are convicted."

Never mind that Frank Lee Smith had done the time for his past crimes. Forget that he had lived three quiet, arrest-free years outside of prison before Broward County sheriff's Det. Richard Scheff swept him up in a faulty investigative dragnet and charged him with the rape and murder of 8-year-old Shandra Whitehead. Disregard the fact that Smith was held up in newspapers and on television as a monster. And forget that the real killer, Eddie Lee Mosley, remained on the street to rape and kill again and again.

Forget too that before Smith was wrongfully sentenced to death in 1986, he wept, begging the judge and jury for mercy and swearing he would never, ever hurt a little girl. Ignore that he was still sent to death row for a crime he didn't commit and went completely insane in prison. And forget that he received scant medical attention during his bout with cancer and died in an isolation chamber, strapped to a prison gurney, dehydrated, far from those who loved him.What really matters is that Smith had a bad past that included two homicides while he was a teenager. He belonged in prison.

Richard Scheff, now a Broward Sheriff's Office captain, says so."Regardless of whether [Frank Lee Smith] was responsible for the murder of Shandra Whitehead or not, he was really a dangerous guy," Scheff told me. "I think he was a dangerous guy. He had certainly killed two other people."Then he laughed and added, "I mean, how many people do you have to kill before you forfeit your freedom?"And there it was. Many people had suspected it, but he said it. Smith, before he was sentenced to death in 1986, already knew Scheff saw him as a throwaway defendant. "My past seems to follow me wherever I go," Smith said in court, "and now it has got me sitting here for something I haven't done."

Jeff Walsh, a defense investigator who worked years to exonerate Smith, has long said that Scheff targeted Smith because his criminal past made him an easy sell to a jury. "That is the truest thing he's ever said in his life," Walsh says of Scheff's remarks. "That is the Frank Lee Smith case in a nutshell. BSO was the judge, jury, and executioner in that case. He was convicted on his past, and that is how Scheff operates. He's a rogue cop."

It's the first time Scheff has ever said anything publicly about Smith since DNA tests exonerated him of Whitehead's murder in December 2000, 11 months after he died in prison at age 52. Scheff remained silent until last Tuesday, when he was compelled to testify about the case during the high-profile murder trial of Michael Scott Keen, whom Scheff also helped send to death row. Afterward, I questioned the captain outside the courtroom.

"The man was strange," Scheff said of Smith. "I mean, I could never figure him out. I couldn't tell if he was stupid and trying to pretend like he was smart or smart and trying to pretend like" -- he pauses here before continuing -- "to tell you the truth, I always thought he was trying to manipulate me. I had this feeling like he was trying to handle me.... He should have been honest with me -- or kept his mouth shut."

I had to excuse myself at this point to reach down and pick my lower jaw up off the floor. Talk about strange. As I described in a news story more than a year ago ("Captain of Deceit," July 26, 2001), it was Scheff who manipulated the murder case to fit Smith and who apparently lied in court to keep Smith behind bars. According to Smith's testimony, it was Scheff who badgered Smith into talking to him and refused to let him get a lawyer.

It is true, however, that Smith wasn't normal. Small wonder. His parents were murdered in separate incidents, and his early childhood was spent in and out of foster care and abusive family situations. When he was a little boy, a bottle was broken on his head during a street riot, damaging his brain and permanently distorting his vision. He suffered from schizophrenia and paranoid delusions. Throw in his violent youth, the two homicides, and 15 years in prison and you have the perfect fall guy for a murder.

Scheff orchestrated the case against Smith with the skill of a Tchaikovsky. The key controversies surrounding Scheff's actions involve an alleged confession by Smith and contradictory testimony the captain has given about whether he showed a photo lineup that included the actual killer, Mosley, to the key witness.

Scheff got witness Chiquita Lowe to identify Smith at the 1986 trial as the man she'd seen on the street near Whitehead's house the night of the murder. Scheff testified at the trial that he never showed her a picture of Mosley, whom he had ruled out as a suspect because Whitehead's mother was his cousin and insisted he wouldn't have hurt her daughter.

He should have shown her that picture. Lowe recanted her identification of Smith in 1989 after being shown a photo of Mosley and realizing he was the man. She also said that she never really believed Smith was the killer and that Scheff and prosecutor William Dimitrouleas (now a federal judge) pressured her to lie in court.

The Captain of Deceit Strikes AgainContinued from page 1Published on August 15, 2002

After Lowe's recantation, Scheff contradicted himself in a 1991 court hearing, saying he had shown Mosley's picture to the witness back in 1986. This testimony discredited Lowe and helped make sure Smith didn't get a new trial or the DNA tests he was seeking to clear his name.

Later, during a hearing in 1998, Scheff produced in court the alleged Mosley lineup he'd shown Lowe. Again, Smith was denied justice.

When, in 2000, DNA tests posthumously vindicated Smith and proved that Mosley was Whitehead's killer, Scheff came under fire for the contradictions concerning the lineup, prompting Gov. Jeb Bush to order a perjury investigation. Special prosecutor Lawrence Mirman interviewed Scheff, who told the prosecutor that he couldn't really remember whether he showed Lowe the lineup or not. In July 2001, Mirman found there was "reasonable suspicion" that Scheff had committed perjury but concluded that there wasn't enough evidence to charge him with a crime.

Fast-forward to this month's trial of Keen, who Scheff had arrested back in 1984 for drowning his wife at sea. Keen was convicted, but the case still had so many problems that last week he was back in court for the fourth time. The judge in the Keen trial, Paul Backman, determined that the Smith case was relevant to Keen's defense and allowed the defendant (who was acting as his own attorney) to question Scheff on the stand about the false conviction."Have you ever helped put an innocent man on death row?" Keen asked Scheff.

"I've never helped put anyone on death row," the captain replied. "I've simply come into court and answered questions... and unfortunately in [the Smith case], it had an awful outcome."Interesting answer, kind of like a Nazi death camp director saying he never killed anyone but just went to work and made sure the line proceeded in an orderly fashion toward the building with the big smokestack.

Last week, Scheff again testified that he had shown the Mosley lineup to Lowe during the 1986 trial. Apparently his memory has improved since last year, when he told Mirman he couldn't recall. Scheff testified that he answered "no" instead of "yes" during Smith's trial because he was confused by the defense attorney's "compound question."

Oops.At one point, he laughed on the stand and said, "I didn't realize how big a production this would all be."I hear you, captain. Gosh, who'da thunk Smith would be exonerated after dying in prison?He also told Keen and the jury: "You are aware of the fact that [Smith] would have been in prison anyway."

Here, Scheff is regenerating a callous and false theory, put forward by the governor and Sheriff Ken Jenne, that Smith would have been sent back to prison.

The theory hinges on the fact that when Smith was apprehended in his aunt's front yard on suspicion that he had killed Whitehead, he had a knife with him. BSO charged Smith with carrying a concealed weapon -- which also served as a convenient reason to hold him for questioning. His aunt, Bertha Mae Irving, says Smith and her family were about to go fishing. Regardless of the circumstances, it's ludicrous to assume this minor offense would have led to a lifetime in prison, but the theory serves a purpose for Scheff and other authorities: It makes the horrible miscarriage of justice seem incidental.

Scheff also swore during the Keen trial that Smith had indeed made incriminating statements that were crucial in securing the conviction. Scheff and Tom Carney, who is now the number two man at BSO under Jenne, lied to Smith, saying that Whitehead's brother saw the killer. Smith allegedly replied: "There was no way he could have seen me; it was too dark."

It's a strange thing for an innocent man to say. But Charles Morton, who prosecuted Keen and has worked with Scheff on numerous homicide cases, seemed to make the issue go away in last week's trial. Isn't it true, Morton asked Scheff, that Mirman, during his perjury investigation, found that Smith had "under oath in fact said he made those statements?"Scheff answered in the affirmative.

Although Keen didn't challenge this exchange, it is utterly false. Mirman never made such a finding, and Smith, during his trial, twice denied making the statements. So I asked Morton about it; he led me to a single footnote in the Mirman report, which said that Smith had testified during the 1986 trial that his statement "it was too dark" was taken out of context by Scheff."If it was taken out of context, that means he [Smith] must have said it," Morton explained.

An interesting lawyer's trick, but it's still not true. Although Smith did say that his words were taken out of context, he never admitted saying anything. According to the 1986 trial transcript, when asked point-blank if he said "it was 'too dark,'" Smith unambiguously answered, "No."Still, last week's jury heard otherwise, a fact that might give Keen some ammunition for a fifth trial (he was convicted again August 8). Worse, even after robbing Smith of his dignity and leaving him to die horribly in prison, Scheff is putting damning and false words in the innocent man's mouth to make himself look better.

Scheff at least admitted to Keen that he had made incorrect assumptions in Smith's case. Outside the courtroom, however, he brought up another dubious theory designed to explain the failure of the justice system: Smith might have been at Whitehead's house and tried to steal a TV set right after Mosley killed her. "If that is true," Scheff said, "it certainly bodes well for me. But for that to have occurred, it would have had to be a huge coincidence, so I'm uncomfortable with it."

But later, as I followed Scheff down the hall to the courthouse elevator, he told me, "[Smith] had to have been there." He didn't elaborate. Then Scheff said of his investigation of Smith: "I stepped on my dick and made a mistake."

If Scheff's railroading of Smith wasn't intentional, it was certainly an auspicious mistake: The Smith arrest won Scheff "Deputy of the Month" honors and began his fast climb up the BSO ladder. Sheriff Jenne apparently has forgiven Scheff his mistakes -- he promoted him to commander of countywide operations just last year.

So Scheff has apparently overcome his shameful past. It's a crime that he wouldn't let Smith do the same.

Counsel for Mr. Smith also presented the following witnesses: Chiquita Lowe; Jeffrey Walsh; Andrew Washor; and Judge William Dimitrouleas. Ms. Lowe again testified that in 1989 she was shown a picture of a man whom she recognized as the man she saw on the street the night of Shandra Whitehead's murder (1998 trans 79-82). Ms. Lowe identified the picture she was shown in 1989; it is a booking photo of Eddie Lee Mosley (Defense Exhibit 1).

Ms. Lowe explained why she identified Mr. Smith at his trial as the man she saw near the victim's house on the night of the crime. Ms. Lowe was a teenager at the time of Mr. Smith's trial who knew the victim's family and wanted to assist the police in solving the crime. She explained:I was under a lot of pressure, a whole lot of pressure. I was scared, nervous, young. I just was under a lot of pressure. It hurted me because I know a little girl got killed, I know the family, and it just hurted me seriously, just hurted me. It hurts talking about it.

(1998 trans 66). Ms. Lowe explained: "I knew a bad thing happened and I feel that I had to do something about it in my heart." (1998 trans 145). Ms. Lowe also explained that she felt pressured by the community:

Q You said the people in the neighborhood --A Neighborhood. They just afraid to have that person on the street again so they can go over again, something else can happen to somebody else little girl. They wanted him off the street.(1998 trans 72-73).

In addition to pressure from the community, Ms. Lowe testified that she was pressured by Detectives Scheff and Amabile to cooperate with their investigation. Ms. Lowe testified that the police attempted to influence her when she looked at the first photo line-up. Ms. Lowe testified that the police "kept pointing at [James Freeman's photo] and talking about it" and "kept on telling me is Freeman the one who did it, because Freeman known of doing that to little girls." (1998 trans 57). The police used the same suggestive tactics when they showed her the line-up including Mr. Smith's picture:

They showed me the second [line-up] and I looked at them and they say -- I'm not certain which number he said but I know it was a number with Frank Lee face on it. I'm just saying, for instance, say number two.

They said this is the one that Shandra mother said and Gerald said this is the one, Frank Lee. This is who did it. This is the one that we have to get off the street because he hurt little girls.And he just kept on pointing to the picture and telling me that this is the one, we have to get him off the street.

THE COURT: Who's saying that?THE WITNESS: The two police officers.THE COURT: Scheff and somebody else?THE WITNESS: Yes.THE COURT: Did you know him beforehand, Frank Lee Smith?THE WITNESS: I never laid eyes on him.. . .THE COURT: They said to you that he was the one that did this homicide?THE WITNESS: They said he the one that did it.

(1998 trans 58-59). Ms. Lowe testified that the police told her that Ms. McGriff and Mr. Davis had already identified Mr. Smith as the man they saw on the night of the murder (1998 trans 75). Ms. Lowe believed what the police told her about the other witnesses (1998 trans 76).Ms. Lowe explained on cross-examination that she would not have chosen Mr. Smith from the photo line-up if not for police coercion:Q Okay. Do you recall picking out number two?A They was pointing number two out to me.Q They were pointing number two out to you? Have you ever testified in any court of law that Detectives Scheff and Amabile and/or Amabile told you to pick out number two?A They kept on pointing at that one saying this is the one.Q At the time you made the selection?A What selection?Q At the time that you did this photo lineup, originally did this photo lineup?A They brought these pictures to me and they kept pointing at number two telling me that this is the one, this is the one.Q Okay.THE COURT: So in other words, you're saying the only reason you pointed out number two is because they kept saying this is the one, this is the one?THE WITNESS: Uh-huh.THE COURT: You're saying but for them saying that to you, you would not have picked out number two?THE WITNESS: No, I wouldn't have picked number two out.THE COURT: You wouldn't have?THE WITNESS: I wouldn't have picked none of those that he just showed me. I wouldn't have picked none of them.

(1998 trans 106-08). Ms. Lowe admitted that she swore under oath that the police had not pressured her; she explained why she made that statement: "I had to say it." (1998 trans 116).The same pressure was exerted upon Ms. Lowe at the time of Mr. Smith's trial:Both of the police officers told me that go in there and tell the truth. We captured the person that did this to this little girl here and he needs to be off the street.

Mr. D told me that he would not harm me, that everybody was going to be around in the courtroom and he cannot do anything to you. Just go in there and just tell the truth.

And they kept on saying this person here is bad, he need to be off the street, and just go in there and just tell the truth. They just kept on telling me that over and over and over and over again.(1998 trans 69). Ms. Lowe testified that she was afraid to go into the courtroom because "[t]hey said they captured the person that killed that little girl, and I was afraid to go in the courtroom on account of death . . . . and looking at the person in there in their face knowing that they did an awful crime like that." (1998 trans 152).

However, when Ms. Lowe saw Mr. Smith in court at his trial, she knew that he was not the man she saw on the night of the murder. Ms. Lowe explained that when she saw Mr. Smith in court at his trial, it was the first time she had seen him live (1998 trans 71). She realized that he was too thin and did not have the droopy eye that both she and Mr. Davis saw on the night of the murder (1998 trans 70). Ms. Lowe explained why she identified Mr. Smith despite her realization that he was the wrong man:

Q Okay. Now, earlier you said -- Well, why did you point to [Mr. Smith] and say he was the man you saw when you were in court?A I was under a lot of pressure, other people in the neighborhood, what they were saying. `Um, I was very hurt because I know how the mother feel, how the mama had been under a lot of stress and she was hurt.(1998 trans 72). Ms. Lowe's testimony on recross was consistent about the pressure that caused her to identify Mr. Smith at his trial:Q You had no hesitation in pointing him out and saying that's the man I saw on April 14th, 1985?A The police told me that Miss Dorothy and Gerald say that is the man and I went ahead and said also because they said the man needed to be off the street and he hurt that little girl and that was him.(1998 trans 161).

Ms. Lowe testified that the first time she saw a picture of Eddie Lee Mosley was 1989 when Jeff Walsh visited her. She also testified consistently with her trial testimony that she was shown two photo line-ups: one including a picture of James Freeman and the other including a picture of Frank Lee Smith.

In response to Ms. Lowe's testimony identifying Eddie Lee Mosley as the man she saw on the night of the crime, the State presented Detective Richard Scheff and Dorothy McGriff. Detective Scheff testified that he and Detective Amabile considered Eddie Lee Mosley a suspect in this case "because he was notorious for committing crimes of violence in the area" and that "simply in an abundance of caution I considered him a suspect." (1998 trans 349). Detective Scheff testified that he showed a photo line-up of Eddie Lee Mosley to Ms. Lowe, Ms. McGriff, and Mr. Davis (1998 trans 349-50). He identified the Mosley line-up and testified that the picture accurately depicted Mosley as he appeared at the time of the Whitehead murder (1998 trans 370). Detective Scheff explained that he encountered Mosley in "the latter part of February of 1985" and again during "the latter part of April of 1985 through May and June." (1998 trans 370). According to Detective Scheff, at that time Mosley's hair was close-cropped and his beard was neatly trimmed (1998 trans 373).

The State's other witness at the evidentiary hearing was Dorothy McGriff, the victim's mother. Ms. McGriff testified that the police showed her a picture of Eddie Lee Mosley in a line-up of six pictures and that she told them he was her cousin (1998 trans 218). Ms. McGriff testified that the picture of Mosley was in the same line-up that included Mr. Smith's picture (1998 trans 219-20). On cross-examination, Ms. McGriff admitted that at the 1991 evidentiary hearing she testified that she saw Mosley's picture not in a line-up but in a picture book:

Q Do you remember did they actually show you a lineup at one point in time with about six pictures in it? And your answer: No, there wasn't no six pictures. It was like a photo book. Do you know -- do you know how to get a photo book? And then the question, yes. I looked through the book and the book -- skimmed through to look in the picture book.

(1998 trans 234). On redirect, Ms. McGriff testified that she knows the difference between a photo line-up and a photo book (1998 trans 236).

Detective Scheff also testified about Eddie Lee Mosley's modus operandi and explained why he believed Mosley's modus operandi did not match the facts of this case:A In all the cases that we've been able to link to Eddie Lee Mosley - and by link I mean more than simply just suggest that it might be Mr. Mosley - the victims are adult female prostitutes primarily or picked up in a bar. The sexual activity occurs outside in an open field and the manner of death is manual strangulation without a ligature being used. Also there is no trauma, blunt trauma.

Q And in this case you have a --A This case I have a child victim, I have a ligature, I have blunt trauma, and I have sexual activity occurring indoors.(1998 trans 397). Detective Scheff explained why he used a Mosley line-up in this case despite the alleged differences in his modus operandi:

I thought Eddie Lee Mosley was an individual that I was looking at as a suspect in two other cases that I subsequently arrested him on. He was notorious in the area and a decision was made simply to put his picture in a photo lineup and see how the witnesses reacted.

This was prior to us getting the composite. I don't think I would have even done that had we gotten the composite first because I would have looked at the composite and said that that's not Eddie Lee Mosley or at least the Eddie Lee Mosley that I knew.(1998 trans 460).

Detective Scheff was unable to explain the inconsistency between his hearing testimony regarding the Mosley line-up and all the other evidence in the case. In regard to his trial testimony that he did not show a line-up including Mosley's picture to the witnesses, Scheff explained that he made a mistake (1998 trans 375). Detective Scheff offered the following explanation for his failure to mention investigating Mosley or showing the witnesses a Mosley line-up at his deposition:

Okay. I did not consider at the time I was giving my deposition to Tom Gallagher the issue of Eddie Lee Mosley to be one of any importance at all. I based that on the fact that there was no link between Eddie Lee Mosley and the murder of Shandra Whitehead.

Tenuous or not, there was no witness, there was nothing to suggest that Eddie Lee Mosley was a suspect in this case other than the fact that he was a notorious person in this area.. . .And so I considered it a very trivial matter. Obviously, it's taken on added importance over the years, but at that point in time it really didn't seem to be relevant.

(1998 trans 437-58). This answer would suffice only if Scheff had been asked a specific question about "relevant suspects." However, his opinion that Mosley was irrelevant to the case does not satisfactorily explain why he failed to mention showing the witnesses a Mosley line-up when he was repeatedly asked whether anything else had been done on the case. His explanation also fails to establish any difference between Mosley and the other suspects who were allegedly eliminated but were mentioned during his deposition.

Detective Scheff was also questioned about his handwritten notes which include an account of the investigation detailing the activity done each half hour (Defense Exhibit 7). The notes do not mention showing a line-up including Eddie Lee Mosley to Chiquita Lowe, Dorothy McGriff, and Gerald Davis (1998 trans 444). Detective Scheff's notes also do not refer to his showing a picture book of 150 pictures to Ms. McGriff as he testified at the 1991 hearing (1998 trans 449). The notes make no mention of Eddie Lee Mosley at all although, as with his deposition, they do mention other suspects who were investigated such as James Freeman, Neely Williams, and Edwin McGriff (1998 trans 444). The notes specifically indicate that Scheff checked the criminal histories of Edwin McGriff and James Freeman for similar crimes (Id.). There is no similar notation that Scheff checked Mosley's criminal background although he testified that he investigated Mosley's criminal history and was familiar with his modus operandi (1998 trans 445).

Detective Scheff could not adequately explain his failure to mention the Eddie Lee Mosley line-up in his handwritten notes, his final report, his deposition and his trial testimony. He claimed in 1998 that Mosley was not a suspect (1998 trans 468), while at Mr. Smith's trial he testified that Mosley was a suspect. He offered the following explanation:

I differentiated Eddie Lee Mosley to any of the other names that you have mentioned because the other names that you have mentioned, there was some link; that was somebody said, you know, the family came forward and they were suspicious. There was some link, tenuous though it might be, between that person, that potential suspect and the case.

In Eddie Lee Mosley's situation there was nothing to suggest that he was the suspect other than pure speculation on the part of the sheriff's office. And so there was a distinct difference in the way I would characterize him in this case, at least in my mind there was.

(1998 trans 455). This differentiation in Detective Scheff's mind is insufficient to explain the inconsistency between his hearing testimony that he showed a Mosley line-up to the three witnesses and all the other evidence in the case indicating that a Mosley line-up was never used.Counsel for Mr. Smith presented additional testimony contrary to Detective Scheff's hearing testimony regarding the Mosley line-up. Mr. Smith's trial attorney, Andrew Washor, testified that during discovery he received two photographic line-ups -- one of Mr. Smith and one of James Freeman (1998 trans 251). Mr. Washor testified that he received nothing about Eddie Lee Mosley during discovery (1998 trans 252, 254). Mr. Washor was also called as a rebuttal witness after the Mosley line-up was introduced during Detective Scheff's testimony. After examining the Mosley line-up, Mr. Washor testified that it did not look familiar and repeated his testimony that he did not receive a Mosley line-up at the time of Mr. Smith's trial (1998 trans 527-28).

William Dimitrouleas, the prosecutor on Mr. Smith's case who is now a federal district court judge, also testified for Mr. Smith in rebuttal regarding the Mosley line-up. Judge Dimitrouleas testified that the trial judge had granted a defense motion requesting all photographs and photographic line-ups used during the investigation. Judge Dimitrouleas testified that he would have turned over all photographic line-ups used during the investigation even if Mr. Washor had not filed a motion specifically requesting them (1998 trans 509). Judge Dimitrouleas examined the Mosley line-up that was produced by Detective Scheff and testified that he had no independent recollection of ever seeing the line-up before (1998 trans 514).

He explained:[I]t's an unusual arrangement for a photographic line-up. I'm not saying I never saw it but I would think that a line-up where it wasn't three across and three across, it would be something that I might remember.Q But you don't recall ever seeing this?A Never recall seeing that.Q And in your experience the formation of the lineup is different than your normal line-up?A Yeah. Normally they'll have three pictures across and three pictures on the bottom or some other situation.Q Two parallel lines?A Usually that's what they have. That's an unusual configuration that I might remember if I had seen that before.

(1998 trans 514). Judge Dimitrouleas testified that he would have corrected Detective Scheff's trial testimony that there was no Mosley line-up shown to the witnesses if he knew that Scheff was mistaken or lying (1998 trans 506-07).

Mr. Washor also testified that the information regarding Eddie Lee Mosley that was unavailable to him at the time of trial -- Ms. Lowe's identification, police reports naming Mr. Mosley as a suspect, the Mosley photograph that Ms. Lowe was shown -- would have enabled him to support his theory that Mr. Smith was innocent. Mr. Washor was shown a composite exhibit of police and autopsy reports from sexual assault and murder cases in which Mr. Mosley was a suspect. He testified that he would have used the reports to compile a reverse William's Rule motion and to question Detectives Scheff and Amabile about their elimination of Mr. Mosley as a suspect (1998 trans 272).

In regard to the reverse Williams' Rule motion, Mr. Washor testified that the reports revealed several details that were similar to the facts of this case. First, Mr. Mosley approaches people on the street, says that he is from New York and asks the person about doing drugs with him (1998 273). This pattern was followed by the person who approached Gerald Davis on the night of the murder. Several of the reports identifying Mr. Mosley as the perpetrator mention a "droopy eye." (1998 trans 274). Chiquita Lowe and Gerald Davis both included this unique characteristic in their descriptions of the man they saw.

Mr. Washor also testified about similarities between the crimes Mosley was suspected of and the Whitehead murder: all involved African-American female victims who were raped or raped and murdered. Mr. Washor also testified that the reports indicated that Mr. Mosley used different methods to kill his victims, in contrast to Detective Scheff's testimony that Mosley was eliminated as a suspect because he only kills by manual strangulation.

The reports show that Mosley used different weapons (including a knife, a cane, and a gun) and that on several occasions he strangled his victims with a ligature. In addition to the similarity of the crimes, the rapes and murders of which Mosley was suspected were all committed in the same geographical location as the Whitehead murder (1998 trans 274). Regardless of his success with a reverse Williams' Rule motion, Mr. Washor testified that he would have used the reports to question the detectives about the elimination of Mr. Mosley as a suspect; if these reports had been available to Mr. Washor, the jury would have known that Mr. Mosley was a suspect in numerous rapes and murders in the same geographical area as Shandra Whitehead's rape and murder.

On March 7, 1991, Judge Tyson held an evidentiary hearing as ordered by the Florida Supreme Court. Judge Tyson only permitted Mr. Smith to present Ms. Lowe's testimony. Except for a proffer, the circuit court would not allow Mr. Smith to put in any corroborative evidence that Eddie Lee Mosley, the man Ms. Lowe's affidavit says she saw the night of the offense, was the man who committed this crime, and that Mr. Smith was not that man (P.C.-R. 27-47, 106-07).

Ms. Lowe's testified at the evidentiary hearing. Ms. Lowe unhesitantly testified that she still recalled very well the moment the man flagged her down on April 14, 1985 (PC-R. 50). Ms. Lowe became "convinced" that Mr. Smith was not the individual she saw on the night of the murder long before she gave her affidavit in 1989. Prior to trial, Ms. Lowe had never seen Mr. Smith in person. She had only seen a photograph of Mr. Smith in a photo lineup. When she saw Mr. Smith in the courtroom, she became "convinced" that Mr. Smith was the wrong man. At the evidentiary hearing, she testified:

Only thing I remember is when I walked into the courtroom . . . I seen Mr. Frank [Smith] standing up there. I had my -- they kept saying is that the man, but I had my doubts that was the man because the man I seen that night he was muscular, big and Mr. Frank [Smith] was not."

(PC-R. 65). Ms. Lowe testified that despite her doubts she identified Mr. Smith at trial as the man she saw (PC-R. 79). When asked why she didn't tell the court and jury that she made a mistake, she testified:

A. No, I couldn't feel like that. Because -- I couldn't. I was confused.Q. Were you worried while you were testifying about whether or not Mr. Smith was the right person?A. I was confused.THE COURT: I didn't hear the answer?THE WITNESS: Confused.

BY MR. MCCLAIN:Q. Can you tell me as best you can what you are thinking? What was it that you were confused about?A. That they saying they got the man. The man needs to be off the street. He's dangerous and they kept saying "this is the man," you just have to say "this is the man because he need to be off the street." And I was thinking about the little girl's mama, that she's going through this, that had happened with her daughter and everything. I was just confused.Q. Did you feel a lot of weight on your shoulders?A. Yes.Q. When you were in the courtroom and you looked at Frank Lee Smith, did you have nagging doubts in the back of your head?A. Yes.* * *

BY MR. MCCLAIN:Q. When you looked at Mr. Smith in the courtroom, what were you thinking?A. What they told me, "the man was dangerous and he needs to be off the street."Q. What were you thinking about his fitting the description?A. He didn't fit that description that I sketched out.Q. When you got off the witness stand, what did you think?A. Terrible.

(PC-R. 79-80). Ms. Lowe's doubt about her identification of Mr. Smith was present long before 1989. At trial, she knew that Mr. Smith was not the man she saw -- that he didn't fit the description she sketched out. (Id).

She testified that when Mr. Walsh, an investigator with undersigned counsel's office, approached her on December 20, 1989 and showed her a photograph of Mr. Mosley she knew that:This is the one that flagged me down in the car... [I]t brought moments back of the incident when it happened. ... A warm feeling came over me.

(PC-R. 52). When asked if she was certain Mr. Mosley was the man she saw, Ms. Lowe testified that she was "very, very, very, certain" (PC-R. 52; see also PC-R. 74-75 and 84).Ms. Lowe testified that once the police arrested Mr. Smith, she was under "a lot of pressure" to identify him as the man she saw that night (PC-R. 63-64, 71). When questioned about her identification of Mr. Smith from the photo lineup, she testified:

They asked me is one of these the guy. I said no, but I said that his hair was like the guy I seen that night.

(PC-R. 71). Ms. Lowe admitted picking out Mr. Smith from the photo lineup but was emphatic that she told the detectives "that the hair was like the guy that [she] saw" (PC-R. 60).Ms. Lowe explained that Detectives Scheff and Amabile pressured her to make an identification of Mr. Smith at the photo lineup (PC-R. 63). She testified that she was under:"A lot of pressure ... from the police officer that came out there telling me that the man is dangerous and if he stays out there, he's going to do it to someone else. So I was up on a lot of pressure."(PC-R. 62-63).

She explained further:I only told them that the hair look like the man that did it. And when I say the hair that looks like the man that did it, they kept pushing me "Is this the man, Is this the man, Is this the man." ... They kept saying that.(PC-R. 81).

Ms. Lowe also testified that she felt pressured by the prosecutor (PC-R. 63). She specifically recalled being pressured to say that the man she saw that night had a scar under his eye (PC-R. 53). Of course, Mr. Smith has a significant noticeable scar under his right eye (R. 706). Ms. Lowe said she was pressured to testify at trial about the scar but refused to do so (PC-R. 53). In fact, the circuit court judge at the evidentiary hearing, noticing the scar under Mr. Smith's eye, asked Ms. Lowe about this:

The Court: Ma'am, did you say the person that you saw did or did not have a scar?The Witness: The man that learned in my car? No scar.The Court: Did not have a scar?The Witness: No scar.(PC-R. 87-88).

Ms. Lowe testified that she felt pressure from not only the state but also from her neighborhood, people she knew, and friends (PC-R. 78). Moreover, Ms. Lowe was constantly thinking about the victim:

I know that little girl got killed. I know she had got killed and that's all that was going through my mind, the little girl got killed.

(PC-R. 86). As a result of all this pressure, Ms. Lowe was, in her words, "confused" when she finally saw Mr. Smith in person and realized he was not the man she saw that night (PC-R. 79). At the time of Mr. Smith's trial, Ms. Lowe was only 19-20 years old (PC-R. 77).Ms. Lowe's hearing testimony left no doubt that at Mr. Smith's trial she realized that Mr. Smith was the wrong man. On December 20, 1989, this was only confirmed when she saw Mr. Mosley's photo and became convinced that Mosley was the individual she had seen at her home near the time of the homicide. The State questioned her about having been convicted of a theft charge subsequent to Mr. Smith's trial. Ms. Lowe openly admitted that she had been convicted of a theft charge (PC-R. 73).

In light of Ms. Lowe's recantation, the State attempted to establish that Ms. Lowe was merely confused and that she had, at the time of the pretrial investigation, been shown a photo lineup containing Mr. Mosley's photo which she failed to recognize. When asked if she had been shown a photograph of Mr. Mosley pre-trial she emphatically stated she would recognize Mosley if she saw him (R. 69), that "they didn't show me no picture of him," (PC-R. 70) and that "the only thing that was close to the guy that I seen that night" was the composite sketch they drew (PC-R. 70). Moreover, Ms. Lowe's testimony at the evidentiary hearing was consistent with her trial testimony that she had only been shown two photo lineups -- the one containing Mr. Smith's photograph and another containing a photograph of a previous suspect, a Mr. Freeman. When questioned about being shown photographs other than the photo lineup containing Mr. Smith's photograph, Ms. Lowe testified:

I do know that they did show me some more photographs because it was a guy in the photographs they kept questioning me about. I don't know him personally, but I knew him.(PC-R. 69). Ms. Lowe testified at trial about this same photo lineup containing a photograph of Mr. Freeman, a man from the neighborhood that she recognized (R. 684). Although she recognized Mr. Freeman, she said that he was not the man she saw on the night in question (R. 684). At trial, as at the evidentiary hearing, Ms. Lowe testified about only those two photo lineups -- there was no third photo lineup.

In an attempt to establish that there was a third photo lineup containing Mr. Mosley's photograph, the State called the victim's mother, Mrs. McGriff. Mrs. McGriff's testimony concerning this "mysterious" photo lineup was confusing at best:

Q. At anytime did the police come to you in those days after your daughter was killed and show you photographs?A. Yes.Q. Do you remember how many times or how many photographs they may have showed you?A. Oh, about two or three.Q. Did they show you a large group of photographs or was it one at a time?A. Yes, they showed me one at a time and then they showed me large size.Q. Okay. And on any of those occasions, did the police officers show you a picture of Eddy Lee Mosley?A. Yes.Q. Was it in a group or single photo, do you remember?A. It was in a group.(PC-R. 113). On cross-examination, counsel attempted to clarify Mrs. McGriff's answer:Q. Now, you indicated that they showed you two or three photos, or was that two or three they showed you?A. They showed me about two or three photo -- Well, they asked me to look through the pictures.Q. They gave you a couple of photos, gave them to you and asked you to look through them?A. Uh-huh.Q. And that was all the photos that the police ever showed you or did they show you more later, or do you remember?A. No, I don't remember.Q. Okay. Did they also show you -- I mean, if you don't remember just say you don't remember. I'm just trying to be sure. I understand what you're saying.Do you remember, did they actually show you a line up at one point in time with about six pictures in it?A. No, there wasn't no six pictures. It was like a photo book, do you know how you get a photo book?Q. Yes.A. I looked through the photo book and skimmed through to look in the photo book.Q. So they showed you a photo book?A. Yes.Q. And it was a photo book with more than six pictures in it?A. Yes.Q. And when did they show you the photo book?A. Oh, gee. I just don't remember, but I think right after - right after my baby's death, I think, I'm not for sure, right after. I'm not sure.Q. You mean like the next day?A. Yeah.Q. And did they show you photo of Frank Lee Smith that day?A. Did they show me?Q. Yes.A. No, I picked him out myself.Q. In that book?A. Yes.Q. And that was the next day after your daughter's death?A. Yes.Q. Was Eddy Lee Mosley in that photo book?A. Yes.Q. Did the police specifically say "how about this guy?"A. No.Q. But you saw his photo in there?A. Yes.Q. Did you tell the police that that was not the person?A. Yes.Q. You just -- Did you -- As you went through the photo book, did you say "this isn't the person, this isn't the person?"A. Yes.Q. And then when you got to Frank Lee Smith you said "this is the person?"A. Yes.

Moreover, their testimony has always been that Mrs. McGriff identified Mr. Smith from a photo lineup and not while perusing a photo book (R. 642, McGriff; R. 985, Scheff; R. 908 Amabile). At the evidentiary hearing, both Detectives Scheff and Amabile stated that Mrs. McGriff was shown a photograph of Mr. Mosley in a photo lineup and not a photo book (PC-R. 148, Scheff and 185-6, Amabile). Detective Amabile who sat through Mrs. McGriff's testimony at the evidentiary hearing admitted that her memory as to what transpired and when it transpired was different from his memory (PC-R. 198).

Although Mrs. McGriff, Detective Scheff, and Detective Amabile have different stories concerning how and when Mr. Mosley's photograph was shown to Mrs. McGriff, they all testified that she identified his photograph as Mr. Mosley and stated he was her cousin and not the man she saw that night. In fact, Detective Amabile testified that he remembered this specific photo lineup because Mrs. McGriff had stated that Mr. Mosley was her cousin. The problem with this testimony is that as with the testimony about the existence of a third photo lineup containing Mr. Mosley's photograph, their prior sworn testimony is in direct contradiction. At no time pre-trial or at trial did anyone identify Mr. Mosley as a relative of Mrs. McGriff -- and they were all asked whether any of her relatives were suspected of the murder. In answer to the direct question, the only relative the detectives ever identified pre-trial or at trial was Edwin McGriff, another cousin of Mrs. McGriff.

Detective Scheff, the lead investigator in this case, gave a very lengthy and detailed deposition covering in chronological order everything he did in this case. He never mentioned that Mr. Mosley was a serious suspect that they actively investigated. He did not mention that there was a third photo lineup containing Mr. Mosley's photograph. He specifically did not identify Mr. Mosley as a relative of Mrs. McGriff. After explaining that Mr. Freeman was eliminated as a suspect by Ms. Lowe, Mr. Davis, and Mrs. McGriff, the following colloquy occurred:

Q. Did you have, at this point in time, anybody in mind?A. You mean, as a suspect?Q. Yes.A. Oh, no.Q. How about any relative of the deceased, uncles, cousins?

A. We had booked an individual by the name of Edwin McGriff, who is a cousin to Dorothy. As I had indicated earlier, we checked with - on the first night, for similar crimes. And, at that point in time, we discovered that Edwin McGriff had been accused, I think, in 1982, of a sexual battery of a minor black female chid, and subsequently, we sat Dorothy McGriff down and explored the possibility with her that it might have been her cousin. She was quite emphatic that the person that she had seen was not her cousin and that she was being truthful. It was my feeling that she was.

(Scheff deposition p. 44). Again at Mr. Smith's trial, Detective Scheff was asked about relatives and again he indicated that a cousin, Edwin McGriff, was the only family member who was a suspect (R. 1022-23). Detective Scheff testified that this cousin, Edwin McGriff, was never displayed in a photo lineup (R. 1024). Detective Scheff did admit at trial that Mr. Mosley was a suspect, but never said he was eliminated by all three witnesses through a photo lineup or that he was a cousin of Mrs. McGriff. In fact, Detective Scheff testified that he did not show a photo lineup containing Mr. Mosley's picture to any of the witnesses:

Q Was Eddie Lee Mosley ever a suspect in this case?A Eddie Lee Mosley was a suspect in this case along with Edwin McGriff. Initially when we first began investigating the case, really had no specific direction to go in.Q How about Jessie Smith?A Jessie Smith is Eddie Lee Mosley under an alias name.Q Lee Greely, G-r-e-e-l-y Smith?A I don't know.Q That's all I have.A Spell it again?Q G-r-e-e-l-y. Doesn't ring a bell?A No.Q The man called Gator Mouth ever a suspect in this case?A Yes.Q The man that went by the name of Gator Mouth?A Right.Q Was a guy by the name of Big John ever a suspect in this case?A Yes. I wouldn't say they were suspects in the case. I would say they were people who were brought to our attention for one reason or another.Q How about Edward Simmons, did you ever check with John Boucada of your department? He supposedly looks like Mr. Smith.

MR. DIMITROULEAS: I will object to counsel testifying and I'm objecting to the form of the question.THE COURT: Objection sustained, may be rephrased.Q (By Mr. Washor) Did you ever investigate Edward Smith?A Edward Simmons?Q Simmons.A No, sir.Q Never had any contact with Detective Boucada regarding him?A No, sir.Q Were any of these people ever shown to any of the witnesses in either a photo or live lineup, people whose names I just read off other than Freeman?A Other than Freeman, no.(R. 1024 - 1026).

At his pre-trial deposition, defense counsel specifically asked Detective Amabile if any of Mrs. McGriff's cousins were ever suspected of the murder. Detective Amabile responded that Edwin McGriff was the only cousin ever considered a suspect (Amabile Deposition at p. 44). Detective Amabile was asked this again at Mr. Smith's trial and again responded that no family members, other than Edwin McGriff, were suspects (R. 946). The same Detective Amabile testified in 1991 that he didn't remember much about the photo lineups except for the instance when Mrs. McGriff identified Mr. Mosley as her cousin:

Q. Do you recall what photo lineups were shown the witnesses? And let me clarify when I use the word "witnesses," I am referring to Dorothy McGriff, Chiquita Lowe and Gerald Davis?

A. Unfortunately I would have to answer yes because of hearing the prior [evidentiary hearing] testimony [of Mr. McGriff and Detective Scheff]. What I recall, I recalled it more than one photo lineup being shown. I know from testimony today it was also mostly the reason I stated to Mr. Zacks, that I recall Eddy Lee Mosley is - that's how I found out that he was related to Dorothy McGriff.

(PC-R. 185-86). Of course, this testimony is in direct contradiction with his pre-trial and trial testimony that the only relative of Mrs. McGriff who was a suspect in the case was Edwin McGriff, a cousin. Moreover, Detective Amabile, like Detective Scheff, testified at trial that none of the suspects, with the exception of Freeman, were displayed in a photo lineup:Q There were a slew of other suspects in this case, weren't there, besides Mr. Freeman?

A A slew or --Q More than one?A Yes.Q Was there a Carspelia (phonetic) Williams who was a suspect?A His name was given to us.Q Eddie Lee Mosley?A Yes.Q Jessie Smith?A I don't recall that name.Q Greeley (phonetic) Smith?A Again, I don't recall that name.Q Edward Calvin McGriff?A Yes.Q Was he related to the family at all?A I believe so, yes.Q A person by the name of Gator Mouth?A Yes.Q A person by the name of Big John who Detective Frost said in his report somebody identified a composite?A Yes.Q Were any of these leads followed up on?A Yes.Q Were they all followed up on?A Yes, to the best of my knowledge with the exception of the two names I don't recall hearing.Q What became of Big John?A That I believe Detective Scheff and myself checked out and he did not fit the physical description at all.Q Is that reflected in anywhere in your notes or reports or anything of that nature?A No, that would be Detective Scheff's.Q He should have it somewhere?A He should.Q Were any of these other people other than Mr. Freeman in the photographic display or in the live lineup shown to any other witnesses?A No.Q Did you investigate any of the family members backgrounds to see whether they were ever involved in this kind of thing before?A I believe Edward McGriff.Q Anybody else?A No.(R. 945-6).

In 1991 when Detective Scheff was asked if he had any written documentation in the homicide file reflecting the Mosley lineup he testified:

A. I don't think so. I might. I would have to look through the file.Q. With the file that you brought, is there any indication in there of showing a photo of Eddy Lee Mosley to any of the witnesses?A. The file is -- I just brought this so I could have some hope of remembering this stuff.Q. In what you brought that you thought would help you, and with your memory, is there anything to indicate you showed a photo lineup containing Eddy Mosley?A. No.THE COURT: Showed who?THE WITNESS: Eddy Lee Mosley.MR. MCCLAIN: A photo lineup containing Eddy Lee Mosley.THE COURT: To whom?

BY MR. MCCLAIN:Q. To --A. Anybody.Q. Anybody. To these three witnesses that we've been talking about?A. No.(PC-R. 159-60)(emphasis added). Moreover, Detective Scheff had no explanation for this glaring contradiction between his pre-trial and trial testimony and his testimony at the evidentiary hearing:Q. I'm going to hand you pages from your trial testimony. I have three pages to show you and starting with was Eddy Lee Mosely (sic) a suspect. If you can just read from there on until the middle of the third page [R. 1024-26].

A. I am sorry read to where?Q. Let me show you.A. Wait a minute, which is the first page?Q. Eddy Mosely's on the first page.A. Was Eddy Lee Mosely ever a suspect - Do you want me to read it out loud?Q. You can read it to yourself.A. Okay.Q. In those three pages, does that help refresh your recollection as to your trial testimony?A. Yes.Q. You were asked out a series of suspects by the prosecutor --A. Yes.Q. -- if Eddy Lee Mosely was one of those suspects?A. Yes.Q. In fact, he read you a list of names and asked you for a response?A. That's correct.Q. At the end he asked you were any of those names he read to you were shown to the witnesses?A. Yes.Q. And you said other than Freeman --A. Yes, I'm assuming that's accurate. I have no reason to not doubt it's accurate.Q. Is that consistent with your testimony here today?A. No it's not.MR. MCCLAIN: I have nothing further, Your Honor.

THE COURT: Re-direct? Could you repeat that question and answer again that you just asked?MR. MCCLAIN: Was that consistent with your testimony here today?THE COURT: No, the last question?MR. MCCLAIN: The question was, were any of these people ever shown to any of the witnesses in either a photo or live line-up (sic), people whose names I just read off other than Freeman. Answer, other than Freeman, no.THE COURT: Go ahead.MR. ZACKS: Nothing further, Judge.(PC-R. 179-181).At the conclusion of the hearing, it was decided that the State and Mr. Smith would simultaneously do post-hearing memoranda (PC-R. 205). Post-hearing memoranda were done (PC-R. 231-64).

On April 29, 1991, Assistant State Attorney, Paul Zacks, left a message for Mr. McClain, Mr. Smith's counsel to call Mr. Zacks. Subsequently, Mr. McClain returned the call. At that time, Mr. Zacks said that Judge Tyson had telephoned Mr. Zacks and discussed Mr. Smith's case. As a result of that discussion, Mr. Zacks was assigned to draft an order denying Mr. Smith relief. Shortly thereafter, Mr. Smith's counsel received via facsimile a draft order and an accompanying cover letter detailing the timetable Judge Tyson and Mr. Zacks had worked out.After learning of the ex parte communication between Judge Tyson and the State, counsel for Mr. Smith filed a Motion to Disqualify Judge, requesting that Judge Tyson recuse himself from Mr. Smith's case because of the ex parte communication (PC-R. 265-66). Counsel for Mr. Smith also filed Objections to Draft Order, arguing:

On May 7, 1991, defense counsel received the State's draft of a proposed order denying 3.850 relief in the above entitled matter. The proposed order and its cover letter accompany this pleading. Defense counsel's understanding is that the Order was drafted by the State after Judge Tyson called Assistant State Attorney Paul Zacks and discussed the matter. Neither Mr. Smith nor undersigned counsel were privy to that discussion. Undersigned counsel had requested that any post-hearing discussions about the case not be ex parte and that such discussions be conducted with all parties present. Counsel further suggested that the discussions could be telephonic but that a court reporter should be on the line in order to put the discussions on the record.

(PC-R. 279). Judge Tyson did not rule on the Objections to Draft Order. On June 6, 1991, Judge Tyson denied the Motion to Disqualify (PC-R. 283), and, the next day, June 7, 1991, signed verbatim the State's order (PC-R. 284-87). Mr. Smith thereupon filed a notice of appeal.On May 28, 1992, the Florida Supreme Court issued its opinion in Rose v. State, 601 So.2d 1181 (Fla. 1992), wherein the court reversed an order denying post-conviction relief because the Assistant State Attorney, Paul Zacks, had engaged in ex parte contact with the presiding judge in preparing a draft order denying all relief. When Mr. Smith filed his brief in the Florida Supreme Court, he relied upon the opinion in Rose v. State. The State refused to concede error, but instead filed a Motion to Get the Facts, in which it asked for a remand so that evidence could be heard regarding the ex parte contact. The Florida Supreme Court granted the motion and remanded.